Quick Service Novelty Corp. v. Scharf

• Court: New York Court of Appeals Court of Appeals
• Citation: Quick Service Novelty Corp. v. Scharf, 173 N.Y.S.2d 31, 4 N.Y.2d 799 (N.Y. 1958)
• Decision Date: 28 February 1958
• Parties: , 149 N.E.2d 530 QUICK SERVICE NOVELTY CORP., Appellant, v. Ben SCHARF et al., Doing Business as Shirley Ann Sportswear, Respondents.

Page 31

173 N.Y.S.2d 31

4 N.Y.2d 799, 149 N.E.2d 530

QUICK SERVICE NOVELTY CORP., Appellant, v. Ben SCHARF et al., Doing Business as Shirley Ann Sportswear Respondents.

Court of Appeals of New York.

Feb. 28, 1958.

Appeal from Supreme Court, Appellate Division, First Department, 3 A.D.2d 989, 163 N.Y.S.2d 58.

Action was brought to recover moneys allegedly due plaintiff for designing, manufacturing, and shipping and billing apparel to customers of defendants in name of defendants.

The Supreme Court, Special Term, New York County, entered an order denying motion of defendants to dismiss the complaint, on ground that plaintiff failed to prosecute the action diligently, and the defendants appealed.

The Appellate Division, 3 A.D.2d 989, 163 N.Y.S.2d 58, reversed the order, granted the motion, directed judgment to be entered in favor of the defendants dismissing the complaint for lack of prosecution, and held that failure of plaintiff to explain or excuse delay of 31 months between time of joinder of issue and serving and filing of note of issue, and failure of plaintiff to supply affidavit of merits required dismissal of the action, though plaintiff served and filed note of issue immediately before the making of the motion to dismiss.

The Appellate Division, 3 A.D.2d 1015, 165 N.Y.S.2d 429, denied motion for reargument.

The plaintiff appealed to the Court of Appeals, contending that there was no failure on part of plaintiff...